State ex rel. and to Use of Parish v. Young

• Decision Date: 21 May 1931
• Docket Number: 29362
• Citation: 38 S.W.2d 1021,327 Mo. 909
• Parties: The State at Relation and to Use of Egel Parish, Collector of Revenue in and for County of Camden, v. Wallace W. Young and Amanda Young, Appellants
• Court: Missouri Supreme Court

38 S.W.2d 1021

327 Mo. 909

The State at Relation and to Use of Egel Parish, Collector of Revenue in and for County of Camden, v. Wallace W. Young and Amanda Young, Appellants

No. 29362

Supreme Court of Missouri

May 21, 1931

Appeal from Camden Circuit Court; Hon. C. H. Skinker Judge.

Reversed.

Phil M Donnelly, A. W. Curry and Sturgis & Henson for appellants.

(1) The judgment is erroneous in that it is purely a personal judgment against the defendants with award of general execution. Judgments for taxes should and must be against the land and not against the owner personally, as for a personal debt. Stewart v. Allison, 150 Mo. 343; State ex rel. v. Snyder, 139 Mo. 549; Blevins v. Smith, 104 Mo. 583; Neenan v. St. Joseph, 126 Mo. 89; Charley v. Kelly, 120 Mo. 134; Sec. 12946, R. S 1919; Jasper Land Co. v. Kansas City, 293 Mo. 674; State ex rel. v. Clements, 281 Mo. 495; State ex rel. v. Sargent, 76 Mo. 557. (2) The levying and collecting of taxes are purely statutory powers and procedure. The exercise of such powers is in derogation of the rights of the citizen and of property, acts in invitum, and must be in accordance with and founded on positive law. Courts cannot assess or levy taxes against the citizen or his property for any purpose. City of Carondelet v. Picot, 38 Mo. 125; DeArman v. Williams, 93 Mo. 158; State ex rel. v. Ry. Co., 87 Mo. 236. (3) Under our system and scheme of taxation for school purposes, the estimate or certification by the school district clerk of the amounts, rates, etc., of taxes to be levied and collected is the basis of the taxing power. Sec. 11142, R. S. 1919. This estimate or certification must, of course, be based on the action of the school board or voters at the annual meeting or a special election. Secs. 11210, 11151, 11152, R. S. 1919. This estimate or certification of increased rates voted gives the county clerk sole authority, and makes it his duty, to levy and extend the school taxes at the rates certified to him on the county tax books against the land or property listed and valued by the assessor. Secs. 11183, 11151, R. S. 1919. This is done on what is termed the assessor's book made under the provisions of Sec. 12815, R. S. 1919. This tax book is then delivered to the collector and is his sole authority to make collection of school taxes. Sec. 11186, R. S. 1919. (4) In this case the trial court in his findings from the evidence held that the levy and extension of school taxes against defendants' land on the county tax book for 1925 was void for the reason that no estimate or certification of school taxes by or for Consolidated District No. 2 was filed with the county clerk on which to base the same. That levy, as shown by the tax book, was at the rate of 65c on the $ 100 valuation. In so holding, the court was clearly right. St. L. & S. F. Railroad Co. v. Apperson, 97 Mo. 300. The only estimate or certification of school taxes for 1925 filed with the county clerk was the estimate of the individual districts, No. 82, No. 84 and No. 85, based on the action of the April annual school meeting in such individual districts. As these districts were dissolved or absorbed and the territory of same organized into a new district, Consolidated No. 2, in June, 1925, the county clerk did not use these estimates in levying and extending school taxes on the tax book. Had he done so, then the tax book would have shown school taxes against defendants' land and all land in old District No. 82 at a 45c rate, as shown by the estimate of that district. The trial court, however, held that this was what ought to have been done and treated it as done. This was error. State ex rel. v. Buford, 82 Mo.App. 348. In that case a part of a school district was cut off and organized into a new school district after the annual meeting in April and after the estimate of the old district was filed with the county clerk. Mandamus was brought to compel the county clerk to levy and extend the school taxes shown by this estimate against the land in the part of the district so cut off and merged in the new district.

Morgan M. Moulder for respondent.

OPINION

Atwood, J.

This is a proceeding by the State at the relation and to the use of the Collector of the Revenue of Camden County against Wallace W. and Amanda Young to enforce lien for taxes for the year 1925 against certain land owned by defendants. The tax bill sued on was attached to the petition, made a part thereof, and offered in evidence at the trial. The space on the tax bill reserved for designation of the school district for the benefit of which the tax was assessed was marked "C-2," which was explained at the trial to mean Consolidated School District No. 2 of Camden and Laclede Counties, the formation of which district was the subject of litigation in this court in State ex rel. v. Lee, 315 Mo. 817, 284 S.W. 129, and State ex rel. v. Sullivan, 320 Mo. 362, 8 S.W.2d 616.

Defendants' answer contained a general denial, a plea that defendants had tendered all taxes legally due before the filing of this suit, being all taxes due the State and county, and a specific denial that any other taxes were due from defendants to plaintiff. In their answer defendants also averred that they had paid all taxes except school taxes and that if any school taxes were due from defendants they were due Common School District No. 82, Camden County; that the school taxes sued for were levied and assessed as the school taxes of and for Consolidated School District No. 2, Camden and Laclede Counties; that there was no such consolidated school district legally formed, organized or chartered; that said purported consolidated school district was not functioning as such; that the common school districts composing said purported consolidated district were functioning as common school districts; and that the taxes sued for were illegally levied, assessed and demanded.

At the close of all the evidence the trial court made the following finding of facts and declaration of law:

"The court finds that the estimate returned by the school officials of what is known as Common School District No. 82 prior to May 15, 1925, making an estimate of levy of 45c on the one hundred dollars' valuation was valid and may be taken as the basis of the levy of taxes upon property within that territory for the ensuing year; and that the defendant's property was subject to at least that amount of school tax."

Thereupon the following judgment was entered:

"And thereupon, a jury being waived, this cause is tried by the court, and the court, after hearing the evidence adduced by the parties plaintiff and defendant, respectively, doth find the issues for the plaintiff for school tax at 45c levy and penalty $ 13.79, and for other taxes with penalty to date of tender on June 7, 1927, to-wit, $ 19.48, total $ 33.27.

"Wherefore, it is considered, ordered and adjudged that the plaintiff have and recover of and from the defendants the sum of $ 33.27 and that execution issue therefor."

Defendants were allowed to pay all the taxes sued for except the school tax, in accordance with their tender made before suit was brought. The only sum now in dispute is the amount of school taxes for the year 1925, with interest and penalty. We have jurisdiction because the case is one "involving the construction of the revenue laws of this State," within the meaning of Article VI, Section 12, Constitution of Missouri. [State ex rel. v. Johnson, 316 Mo. 21, 296 S.W. 806; State ex rel. v. Shuck, 273 Mo. 50, 54, 56, 199 S.W. 975; State ex rel. v. Oliver, 273 Mo. 537, 201 S.W. 868; State ex rel. v. Adkins, 221 Mo. 112, 119 S.W. 1091; Lamar v. Lamar, 261 Mo. 171, 169 S.W. 12, Ann. Cas. 1916D, 740; State ex rel. v. Frazer et al., 182 Mo.App. 277, 168 S.W. 669; 15 C. J. 1079, n. 51.]

The first assignment of error urged in appellants' behalf is that the court erred in rendering a purely personal judgment against defendants. We have not been favored with either brief or oral argument for respondent. However, it is well settled that a personal judgment against defendant with award of general execution is not authorized in a suit to enforce the State's lien for taxes. [Land & Imp. Co. v. Kansas City, 293 Mo. 674, 678, 239 S.W. 864; State ex rel. v. Clements, 281 Mo. 195, 200, 219 S.W. 900; Stewart v. Allison, 150 Mo. 343, 346, 51 S.W. 712; State ex rel. v. Sargeant, 76 Mo. 557, 560; Sec. 12946, R. S. 1919.]

Counsel for appellants also present questions going to the correctness of the judgment rendered and the validity of the school tax sued for which they say "ought to be decided in view of the fact that there are a number of other similar suits now pending involving the same questions." Appellants' other assignments of error are as follows:

"2. The court erred in holding that plaintiff, county collector could collect for the benefit of Consolidated District No. 2 of Camden and Laclede Counties an amount of school taxes equal to and based on the rate fixed by the vote of, and the estimate filed by, Common School District No. 82, later merged into such Consolidated District No. 2.

"3. The trial court erred and exceeded its powers in making a new levy of school taxes for the benefit of Consolidated School District No. 2 different in amount and rate from that shown by the collector's tax books and the tax bill sued on in this case.

"4. The court...